JAMMU METAL ROLLING MILLS Vs. ASSESSING AUTHORITY

JUDGEMENT

(1.) THIS writ petition was originally presented on 20 -7 -1968 and was later on amended and presented on 4 -9 -18 In the amended petition the petitioner added further grounds questioning the vires of Section 4 of the Jammu & Kashmir General Sales Tax Act, 1962 (hereinafter referred to as "the Act" in this Judgment). I need not detail all the grounds taken in the writ or in the rejoinder because some of the grounds relate to the merits of the case which is a matter that should not be commented upon in this writ petition. Briefly put the relevant and important allegations in this writ petition which are in my opinion necessary for the disposal of this petition, are as under: -

(2.) THE petitioner, M/S Jammu Metal Roll -Mills, is a registered firm under the Partnership Act and carries on the business of rolling of brass and copper and manufacture of utensils. The petitioner filed a return of the turnover for the years claiming deductions therein. The Assessing Authority was satisfied with this return but took objection to the deductions claimed by the petitioner regarding the rolling charges. The objection was raised at the instance of the Deputy Sales Tax Commissioner (Inspections) (hereinafter to be referred as "DSTC") who was biased against the petitioner. That at the instance of the Commissioner and DSTC further proceedings were started. The Assessing Authority was instructed by the DSTC vide his letter No RN/ DCJ/2607 -09 dated 19 -10 -1967 to hold the enquiry in his i.e. DSTCs chambers; in consequence where of some of the statements of the witnesses were recorded in the Chambers of the DSTC, who also has signed these statements. The petitioner and his counsel having taken objection to this procedure, the rest of the enquiry was held by the Assessing Authority himself; that the DSTC at every stage verbally or in writing and also through his Inspector has in fact been directing the operation of the enquiry held by the Assessing Authority. A number of annexures to prove this point have been appended with the petition. It is also alleged that behind the back of the petitioner, the Assessing Authority made some enquiry from the Canal Octroi Post, Jammu and based his order on this information without allowing the petitioner to meet the same. The petitioner moved a transfer application before the Commissioner but that also was rejected; that the respondent Assessing Authority also sent a notice to the petitioner on 23 -5 -68 to show cause why penalty should not be levied for concealing taxable turnover. The petitioner demanded that as no assessment order had been passed, the petitioner did not know the ground which had led the Assessing Authority to issue the notice for penalty and a request was made for time for filing objections, which was rejected by the Assessing Authority who ultimately passed two composite orders regarding the years 1964 -65 and 1965 -66 in which both the sales tax and the penalty were levied upon the petitioner, that whole proceedings were illegal and directed by the superiors and particularly the DSTC of the Assessing Authority who acted as a tool in the hands of his superior officers, without having applied his judicial mind and without following the rules of evidence or of natural justice. Then the evidence of some witnesses is discussed and certain factual allegations are made, Lastly, as I said in the beginning, the vires of Section 4 of the Act has been attacked as being discriminatory and void and violative of fundamental rights.

(3.) AN affidavit was sworn against this long writ petition by one Mr. Madan Mohan Chanda, Assessing Authority, Sales Tax Circle B Jammu. The substance of the affidavit is that the predecessor of the deponent had been informed by the DSTC that the petitioner had concealed certain taxable sales which information had been conveyed to the DSTC and the latter directed the deponent to conduct an enquiry expeditiously to verify the truth of the information. Denovo enquiry was conducted. It is admitted that the enquiry was held in the presence of the DSTC with a view to expedite the proceedings but as this procedure was objected to during the enquiry by the petitioner, the rest of the enquiry was held by the Assessing Authority alone. The statements made in the presence, of the DSTC were not taken into consideration by the Assessing Authority while passing the assessment orders. The influence of the DSTC over the deponent in deciding the case is denied, It is further admitted that administrative instructions were received from the DSTC. Filing of transfer application before the Commissioner is admitted. It is also stated that the petitioner had filed appeal and revision and both are pending, as such the present writ petition is not competent. About the penalty it is stated that a show cause notice was given to the petitioner before the order of penalty was imposed. It is further contended that there is nothing illegal in passing a composite order assessing the tax and the penalty by means of the same order. It is also stated that the information collected from the public records maintained at the Canal Octroi Post Jammu, were not used as the basis of assessment order but have been incidentally referred to. The findings arrived at by the Assessing Authority are based on cogent evidence.